Administrative Decisions and Judicial Review: A Primer

At its core, the law is about relationships: for example, the relationship between two contracting parties and the relationship between a product manufacturer and its users. Managing relationships and, particularly, determining and enforcing the rights and obligations of each party to the relationship, is the focus of most, if not all, legal disputes. The objective of administrative law is to regulate one specific type of relationship: namely, the relationship between the government and the people. Administrative law embodies the general principles which control the way the government exercises its powers [Guy Régimbald, Canadian Administrative Law, 1st ed., (Markham: LexisNexis Canada, 2008), p.1].

Regulating the relationship between the government and the people takes various forms. Commonly, the government will empower an administrative body, called a tribunal, and will delegate the responsibility to regulate a specific governmental relationship to that tribunal. Tribunals are empowered to deal with matters within their jurisdiction and to make decisions over the unique subject matter under their care. Examples of tribunals in B.C. are the Workers’ Compensation Board (commonly known as WorkSafe BC), the BC Human Rights Tribunal, and the Employment Standards Tribunal of British Columbia. These specialized tribunals have particular expertise that allows them to make decisions in order to keep disputes and claims that are within their jurisdiction out of the courts.

In some cases, a tribunal may not have been formally established. Instead, authority is granted to a governmental agency to regulate conduct in a specific area. An example of this is in the context of the highly-regulated pharmacy profession and, specifically, the provision of PharmaCare services by pharmacies. The Provider Regulation, which was introduced under the Pharmaceutical Services Act and came into force on December 1, 2014, establishes a regulatory scheme for the enrollment and conduct of PharmaCare service

Scope of Authority and Judicial Review

Each tribunal gets its authority from its enacting legislation (e.g., the Workers Compensation Act, the Human Rights Code and the Employment Standards Act). The enacting legislation sets out the nature and extent of the tribunal’s powers. A tribunal’s decision is typically reviewable by the court in a procedure known as judicial review.

In a judicial review, the court will look to the tribunal’s enabling legislation to determine whether the decision was within that tribunal’s jurisdiction. Courts are reluctant to interfere with decisions made by administrative tribunals unless the decision falls outside of the jurisdiction of those administrative bodies. The court’s function is not to reconsider the facts or evidence that was considered by the administrative body in coming to its decision, but to determine only whether the decision was made within the administrative body’s scope of powers [Régimbald at pp. 11-12]. The court reviews the decision in the context of one of two standards of review: correctness or reasonableness [Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para. 34].

Within these standards, certain procedural rights must be met in order for an administrative body’s decision to be upheld, namely procedural fairness and natural justice [Régimbald at p. 9]. The procedural fairness to be accorded by an administrative tribunal in coming to a decision depends on the context of the decision in light of the legislation at issue. To put that a different way, what is procedurally fair in one case may not be so in another case.

The factors relevant to the scope of the duty of procedural fairness were set out by the Supreme Court of Canada in Baker v. Canada, [1999] 2 S.C.R. 817 [Baker]. They are:

the nature of the decision being made;

the nature of the statutory scheme;

the importance of the decision to the persons affected;

the legitimate expectations of the person challenging the decision as to the procedure; and

the choice of procedure made by the agency itself.

The principle underlying this consideration is that the person affected by the decision must have the opportunity to present his or her case fully and fairly in a process that is appropriate to the context of the decision (Baker at para. 28).

Natural justice is comprised of two elements: (1) the right to be heard before a decision is made that affects a person’s interests; and (2) the right to an impartial decision maker [Régimbald at p. 11]. The significance of each of these elements depends on the type of decision and the context in which the decision was made [Ibid].

The Record

In a judicial review, the court examines “the record”, which is the record of the evidence and submissions presented to the tribunal that made the decision. Generally speaking, all of the arguments and evidence that the parties wish to rely on must be contained in the record if they want the court to consider it on a judicial review. The party requesting the judicial review will not be allowed to introduce new evidence on a judicial review if the tribunal did not have that evidence before it when making the original decision. There are limited circumstances in which new evidence may be introduced but, generally speaking, this is the case for parties wishing to introduce new evidence on a judicial review.

It is critical to understand that everything that is written to and from the administrative decision maker will likely form part of the record. For this reason, it is important to ensure that correspondence to the administrative body is carefully thought out and clearly written. Documents should always be prepared with an eye to a potential judicial review. EKB’s Regulatory & Administrative team has significant knowledge and experience in this area.